Safeguards Agreement: Overview By Abhijit Das, Professor and Head Centre for WTO Studies IIFT, New Delhi UNESACP ITC Technical Capacity Building Workshop on Afghanistan s Accession to WTO 29 October 2013 1
Requirements on a user of Safeguards duty Legal and institutional framework Notify and implement domestic laws in conformity with Article XIX of GATT and the Agreement on Safeguards Investigating authority 2
Legal Basis GATT article XIX+SG Agreement Domestic law Regional rules
Safeguards Investigation necessary before applying a safeguard measure Safeguard measures differ from AD/CVD measures: No unfair trade practice Higher injury threshold Applied on an MFN basis Have to pay compensation for it Non-application of same measure Wider like product definition
Article XIX of GATT: Substantive Criteria As a result of: Unforeseen developments Importing Member s GATT/WTO obligations Increased imports Causing or threatening to cause serious injury
Increased Imports Absolute, or Relative to domestic production Important distinction--certain legal effects will depend on the type of increase. Recent enough, sudden enough, sharp enough, and significant enough, both quantitatively and qualitatively, to cause or threaten to cause "serious injury". (AB, Footwear, para. 131; US Steel Safeguards, paras. 345-346)
Domestic Industry Like or directly competitive products
Higher standard: Serious injury" Injury in SG Investigations Serious injury (current) Threat of serious injury (imminent) Definition: Significant overall impairment in the position of the domestic industry (Art. 4.1(a)) List of factors to be examined Rate and amount of increase in imports; domestic market share; changes in sales, production; productivity; capacity utilisation; profits and losses; employment
Threat of Serious Injury Must be clearly imminent The anticipated serious injury must be on the very verge of occurring. (AB, Lamb, para. 125) Based on facts and not allegation conjecture or remote possibility
Causation Causal link Non-attribution "Genuine and substantial relationship of cause and effect between increased imports and serious injury (AB, Wheat Gluten, para. 69)
Procedure Procedural rules are more general in SG compared with AD and CVD investigations. Prerequisite: must carry out an investigation! Must establish and publish investigative procedures.
Procedure Complaint Initiation: No standing requirement Collection of information Preliminary determination Hearings Final determination Imposition of final measure
Safeguard Measures What type of measures? Not specified in SG Agreement or GATT 1994. Can take different forms (e.g, quotas, tariff quotas, tariff surcharges...) Must choose the most suitable measure (Art. 5.1) Duration 4 years Can be extended to 8 years
Application of Measures Must apply to all imports irrespective of their sources (Art. 2.2) Only to the extent necessary to remedy serious injury and to facilitate adjustment (Art. 5.1)
Provisional Measures Conditions Critical circumstances where delay would cause damage difficult to repair Preliminary determination that there is clear evidence about serious injury or threat thereof.
Provisional Measures Only in the form of tariff increases Maximum 200 days Duration counted towards that of the definitive measure Notification requirements
Symmetry/Parallelism Imports subject to investigation vs. imports subject to the measure
Duration Progressive liberalisation if longer than 1 year Mid-term review if longer than 3 years Withdraw the measure or increase its pace, if necessary. Notify the CTG immediately on the results of the mid-term review (Art. 12.5)
Re-imposition Special rules limiting re-imposition (Art. 7.5) Equivalence in on off period, but 2 years minimum cooling off period
Compensation? Have to pay for a safeguard measure. Maintain equivalent level of concessions and other obligations vis-à-vis affected Members
Retaliation Prior consultations Agree on a compensation? If not, retaliation Subject to conditions No compensation for first 3 years if safeguard measure applied as a result of absolute increase in imports
S & D Treatment Measures against developing countries : 3 per cent 9 per cent Measures by developing countries : Extra two years in total application (10 years instead of 8) Shorter non-application periods (off period half of the on period, but minimum 2 year limit applies)
Transparency Notify the Committee immediately on: Initiation Finding of serious injury or threat Decision to apply or extend a SG measure Legislation
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